Innes Clark: Ink in a change of view on tattoos

Over the past decade, the popularity of tattoos has continually increased and with that there has undoubtedly been a wider cultural acceptance of body art – these days many top sportspersons, musicians and celebrities have tattoos. Perceptions of the “type” of person who might have tattoos seem to largely be keeping pace with “inking” becoming widely socially acceptable. But have views on tattoos in the workplace kept pace with the rest of society?

The most popular tattoos of 2019 include minimalist, fine line, small and hand tattoos but employers are within their rights to have a policy banning tattoos. Picture: Jane Barlow

Research carried out by the University of Miami Business School and University of Western Australia Business School in 2018 would suggest that, in America at least, employment prospects and earning potential are now unaffected by having tattoos. Indeed male candidates with tattoos were, in some instances, found to be 7.3 per cent more likely to be hired than those without.

While data for this study was collected from more than 2,000 participants, spread throughout the US, the findings seem a little bit on the optimistic side. In the UK, for every story about changing attitudes to tattoos there seem to be just as many about employees rejected following job interviews or even sacked as a result of having tattoos.

There is no specific legal protection for discrimination against people with tattoos in the workplace so certainly during the first two years of employment, employees can, to all intents and purposes, be fired at will for having a tattoo.

Innes Clark is a Partner with Morton Fraser

Similarly, a prospective employee can lawfully be rejected for a job, in most instances, for having a tattoo. The only exception to this would be where any action taken because of a tattoo could be said to be indirectly discriminatory, perhaps where a tattoo was a manifestation of a religion or belief protected under the Equality Act 2010.

However, even if an employee were successful in persuading a Tribunal that their tattoo was related to their particular religion or belief, an employer may still be able to justify the discrimination as a proportionate means of achieving a legitimate aim – most likely linked to the image the organisation it wants to portray. Air New Zealand did though recently end a ban on staff having tattoos amid criticism that its policy discriminated against Maori employees. Although this was in a different jurisdiction, it is a good example of how a discrimination argument might be made.

Those with two years or more service (and so able to raise an unfair dismissal claim) may be able to argue that no reasonable employer would dismiss someone because of their tattoo. Whether they are successful with that argument will depend on a number of circumstances including whether the tattoo is visible, its size, what the tattoo is of and the image the employer wishes to project.

Often the issue with tattoos is a concern about how potential clients or customers might perceive a member of staff with tattoos and, by implication, the employer. Research carried out by ACAS in 2016 found that some public sector workers felt people would not have confidence in the professionalism of someone with a large visible tattoo, while private sector companies had concerns in relation to perceived negative attitudes of potential clients or customers.

Research produced by Statista Research Department in 2015 found that, perhaps not surprisingly, as people aged, their views on larger tattoos became less positive. Often staff making employment and management decisions are older so there is a risk of these views being perpetuated, even if they are becoming slightly out of touch. However, according to Tattoodo – an online tattoo community – the most popular tattoos of 2019 include minimalist, fine line, small and hand tattoos which may be more palatable to employers.

Employers are within their rights to have a policy banning tattoos, or requiring them to be covered or of a certain size or content – indeed from an employer’s perspective, having such a policy, where relevant, makes sense and may make it easier to justify discrimination or dismissal, if they require to do so. But with people aged 25 to 39 being the most likely demographic to have a tattoo (30 per cent of this age group say they have at least one tattoo) businesses risk excluding good candidates if too firm a line is taken. While policies will assist managers and staff to know what is generally acceptable, flexibility of approach would be sensible – otherwise employers risk falling foul of the old adage of judging a book by its cover.

Innes Clark is a partner with 
Morton Fraser